Terms and Conditions

Important notice to all users:

1. Definitions

2. Roles and Obligations

1.  The supplier is obligated to provide the service to the customer throughout the subscription term, adhering to the terms stipulated in the contract.

2. Unless expressly stated otherwise in an order form, the supplier commits to exerting commercially reasonable efforts to ensure the service's availability 24 hours a day, seven days a week, with the following exceptions:

   1. Planned maintenance carried out during the hours of 2100hrs and 0500hrs (London time in England);

   2. unscheduled maintenance performed outside of Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least twenty-four (24) hours’ notice in advance;

   3. any circumstance which interrupts the Service caused directly or indirectly by the actions or the omissions of the Customer (including failure to maintain an adequate Wi-Fi connection or failing to update the Customer’s browser settings to the latest settings) contrary to the Documentation, the Contract or otherwise the written instructions from the Supplier;  

   4. any unavailability caused by a Force Majeure Event; or

   5. any installation of the Hardware has not been conducted by the Customer in accordance with the Documentation.

3. The supplier is responsible for delivering the hardware to the customer within six weeks from the date of the order form, unless an alternative arrangement has been mutually agreed upon and documented in writing by both parties.

3. Support Services

1. The supplier will make reasonable efforts to ensure that support is accessible via telephone and email during regular business hours to assist the customer with:

   1. Remedying Defects in the Hardware;

   2. provision of bug fixes and patches and online troubleshooting for the Service; and

   3. providing advice on the use of the Service.

2. In situations where the supplier is required to address defects and, based on the supplier's reasonable judgment, determines there is no defect or that the defect arises from the fault or negligence of the customer — including, but not limited to, the customer's breach of any obligations under the contract and/or documentation — the supplier will charge the customer on a time and materials basis at its prevailing standard rates. The customer will be responsible for all associated costs and expenses, such as travel expenses, the cost of replacement parts or spares, and installation costs. These costs will be invoiced to the customer by the supplier at the actual cost incurred.

4. Customer Obligations

4.1 The customer shall:

1. use the Service only in accordance with the Contract and the Documentation and applicable laws and government regulations with respect to its activities under the Contract and ensure that any persons it authorises to use the Service (as permitted by the Contract) including use of the Hardware and Software;

2. comply with the Supplier terms of use and acceptable use policy available on the Supplier website (as such may be updated by the Supplier by written notice to the Customer from time to time);

3. use commercially reasonable efforts to prevent unauthorised access to or use of the Service, and shall notify the Supplier promptly of any such unauthorised access or use;

4. inspect the Hardware on delivery and notify the Supplier immediately in writing of any Defects;

5. be responsible for installing the Hardware at the Location using a certified electrician unless otherwise agreed with the Supplier;

6. use the Hardware in a proper manner and in accordance with the Documentation and shall ensure that its staff or such other persons authorised by it and by the Supplier to use the Hardware are properly trained to supervise the use of the Hardware;

7. not, without Supplier’s prior written approval, allow any person other than a representative of the Supplier to modify, repair or maintain any part of the Hardware;

8. not resell all or any part of the Hardware to any third-party;

where the Hardware is on loan:

1. not transfer, sell, assign, sub-licence, pledge or otherwise dispose of, encumber or suffer a lien or encumbrance upon or against any interest in the Hardware;

2. insure the Hardware for its full replacement value for the duration of the loan period;

3. notify the Supplier in writing immediately of any loss of or damage to the Hardware; and

4. indemnify the Supplier against any loss or damage to the Hardware while in the possession of the Customer, ordinary wear and tear excepted;

5. ensure that its Wi-Fi connection is maintained in such manner as required in the Documentation to allow any Updates;

6. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Service and the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

2. The customer is prohibited from accessing, storing, distributing, or transmitting any viruses or any material during the course of its use of the service that:

1. Is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2. facilitates illegal activity;

3. depicts sexually explicit images;

4. promotes unlawful violence;

5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or

6. causes damage or injury to any person or property.

3. The customer shall not, except as may be permitted by any applicable law that cannot be excluded by agreement between the parties:

1. Attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Hardware, Software and/or Documentation (as applicable) in any form or media or by any means;

2. attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Hardware or Software;

3. access all or any part of the Service and Documentation in order to build a product or service which competes with the Service and/or the Documentation;

4. use the Service and/or Documentation to provide services to third parties;

5. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party; or

6. attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation, other than as provided under the Contract.

4. In the event of the customer's use of any service in breach of this clause 4 or any other provision of the contract, the documentation, or applicable order form, without prejudice to any other rights and remedies including the right to terminate, the supplier may suspend the service without liability until the customer remedies the breach. If such breach is not capable of remedy (in the reasonable opinion of the supplier) or such breach continues for more than 10 business days, the supplier may immediately terminate the contract without liability.

5. Subject to the supplier complying with reasonable applicable policies of the customer, as notified to the supplier from time to time, the customer shall allow the supplier's personnel such access to the location during normal business hours as is reasonably necessary for the supplier to carry out its obligations to the customer pursuant to the contract. The customer shall provide to the supplier all permissions necessary to obtain such access.

5. Updates

1. The customer acknowledges that:

   1. The Supplier may update the Hardware and/or the Software from time to time by providing (bug) fixes or modifications, introduce new features or functionality, change or discontinue (temporary or permanently) any feature or functionality, component or content, impose limits on certain features or restrict access to parts or all of the Service (together the “Updates”);

   2. the Updates may cause older Hardware, Software configurations or setups to no longer work, and the Customer may be required to upgrade or change the Hardware, Software configurations or setups in order to continue using the Service; and

   3. the Updates will occur automatically without additional notice or receiving any additional consent from the Customer.

2. The customer hereby consents to the supplier installing the updates. The customer’s failure to allow installation of any updates may expose the customer to security risks and may affect the supplier’s ability to properly provide the service. In such an event, the supplier shall not be liable to the customer for any liability or loss that the customer may incur as a result.

6. Title and Risk

1. Risk in the hardware shall pass to the customer on delivery.

2. Notwithstanding the delivery and passing of risk in the hardware or any other provision of the contract, the legal and beneficial property and title in the hardware shall remain with the supplier and shall not pass to the customer until all sums due from the customer to the supplier for the service have been paid in full to the supplier in cleared funds.

3. The customer may not use the hardware in any manner until the company receives payment for the service (and all other outstanding sums under the contract) in full in cleared funds.

4. Until such time as the legal ownership in the hardware passes to the customer, the supplier may at any time during normal business hours enter the location (or any other location where the hardware is located) and remove the hardware therefrom, and the customer irrevocably permits the supplier access to such location to do so. The customer shall indemnify the supplier on a full indemnity basis against all loss, damage, costs, or expenses arising, including loss, damage, costs, or expenses in respect of third-party claims.

5. No provision of the contract shall prejudice the supplier's right to exercise any alternative remedies whatsoever in default of payment by the customer or any other breach.

7. Installation

1. The customer hereby agrees that they will, on reasonable notice of at least two business days, allow the supplier's employees, agents, and/or subcontractors reasonable access to all necessary and relevant areas of the location during normal business hours to perform:

   1. Any part of the Service, including installation of the Hardware;

   2. any other additional or follow-up works related to the Services or as set out under the Contract that the Supplier may be required to undertake from time-to-time at the Location in order to fulfil its obligations under the Contract;

   3. and charge such fees as set out in the Order Form, or as otherwise agreed in writing between the parties, in respect of such matters.

2.  The customer further agrees that it will allow the supplier’s employees, agents, and/or subcontractors access to the location during normal business hours in the event of an emergency, to complete any necessary works, to remove any hardware, or where there is danger to any of the customer’s personnel at the location and others' property, or where any statutory rights are being enforced.

3. If the supplier’s employees, agents, and/or subcontractors are unable to access the location pursuant to clauses 7.1 or 7.2, then the supplier shall incur no liability to you for any losses, costs, and/or other expenses the customer may incur as a result.

4. The customer shall ensure that the location is a clean and safe environment and that the supplier’s employees, agents, and/or subcontractors can provide any service safely.

5. The customer agrees that the supplier shall have no liability to the customer for any damage caused to the location other than in the event of the wilful misconduct of the supplier’s employees, agents, and/or subcontractors, as applicable.

8. Charges and Payment

1. The charges for the service ordered are set out in the Order Form, and the customer is responsible for paying all charges as specified in the applicable Order Form.

2. The subscription term shall start on the earlier of:

   1. The measurable.energy Socket Deployment Date, provided the Customer has installed and fully initiated the Hardware in accordance with the Documentation by such time; or

   2. four weeks from date on which Hardware is delivered to the Customer, even if the Customer has failed to install and fully initiate the Hardware in accordance with the Documentation,

   3. or such other date that the parties may agree in writing.

3.  Charges will be invoiced at the time that the hardware is shipped to the customer and are due thirty (30) days from the date of the order form, unless otherwise specified in the applicable Order Form.

4. The customer is responsible for providing complete and accurate billing and contact information to the supplier and for notifying the supplier of any changes to such information.

5. If the supplier has not received payment within 30 days after the due date, unless the customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute, without prejudice to any other rights and remedies it may have, the supplier:

   1. May, without liability to the Customer, suspend access to the Service while any sum remains unpaid; and

   2. interest shall accrue on such due amounts at an annual rate equal to 4% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

6. All amounts and fees stated or referred to in the contract:

   1. Shall be payable in the currency stated in the applicable Order Form;

   2. are, subject to clause 14.2, non-cancellable and non-refundable;

   3. are exclusive of value added tax, which shall be added to the Order Form(s) at the appropriate rate.

Except for pricing that is designated as promotional or one-time in the relevant Order Form, on renewal of a subscription term in accordance with clause 14.1, the charges will increase by such sums as the supplier shall notify the customer in writing. Charges that were designated as promotional or one-time in the relevant order form shall be repriced on renewal of the relevant subscriptions.

9. Proprietary rights

1. The customer acknowledges and agrees that the supplier and/or its licensors have legal and beneficial ownership of all intellectual property rights in the service and the documentation. Except as expressly stated herein, the contract does not grant the customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the service or the documentation.

2. The customer shall own all rights, title, and interest in the reports. The supplier grants to the customer a royalty-free, perpetual, irrevocable license to use the captured data in the reports for the purpose of making full use of the service and the reports.

3. The supplier shall own all rights, title, and interest in and to all of the captured data.

4. In the event of any loss or damage to captured data, the customer's sole and exclusive remedy shall be for the supplier to use reasonable commercial endeavours to restore the lost or damaged captured data from the latest backup of such captured data maintained by the supplier in accordance with its archiving procedure. The supplier shall not be responsible for any loss, destruction, alteration, or disclosure of captured data caused by any third party (except those third parties subcontracted by the supplier to perform services related to captured data maintenance and backup).

10. Technical assistance

1. Once the order form has been signed by the parties the supplier shall deliver the Wi-Fi Network Information to the customer:

1. 1. Provides the Wi-Fi Network Information, to the reasonable satisfaction of the Supplier and within such period as communicated by the Supplier to the Customer, the Hardware will be delivered by the Supplier to the Customer with a Wi-Fi SSID and password that shall be configured to the Wi-Fi conditions of the Customer in accordance with the Questionnaire; or

   2. fails to complete the Wi-Fi Network Information, to the reasonable satisfaction of the Supplier or within such period as communicated by the Supplier to the Customer, the Hardware will be securely delivered by the Supplier to the Customer with a pre set Wi-Fi SSID and password.

2.  If the customer requests technical assistance to:

   1. Map out sockets at the Location and set up the Hardware and Software the Supplier shall charge the daily fee set out in the Order Form for such services;

   2. assist with issues relating to Wi-Fi connection of the Hardware the Supplier shall:

      1. not charge the Customer for visits of the Supplier’s technical staff that last less than one hour;

      2. charge the Customer for visits of the Supplier’s technical staff that last more than one hour at the hourly rate set out in the Order Form, as such rate may be varied pursuant to clause 8.7 unless:

         1. otherwise agreed in writing by the parties; or

         2. the issue is due to any fault of the Supplier and, in such event, the Customer shall not be liable to pay any charges to the Supplier and any charges already paid by the Customer in respect of such fault shall be refunded to the Customer.  

11. Warranties

1. Subject to clause 12.3, the Supplier warrants that during the warranty period the service will perform materially in accordance with the applicable documentation. For any breach of this warranty above, customer’s exclusive remedies are repair of defects or replacement of defective hardware, or termination in accordance with clause 14 and refund in accordance with clause 14.4(c).

2. The warranty in clause 11.1 shall not apply to the extent of any non-conformance which is caused by a force majeure event, use of the service contrary to the documentation, the contract, or the supplier's instructions, or modification or alteration of the service by any party other than the supplier or the supplier's duly authorized contractors or agents, including but not limited to failure by customer to comply with the obligations set out in clause 4.

3. The Supplier:

   1. Does not warrant that the Customer's use of the Service will be uninterrupted or error-free; nor that the Service, Documentation and/or the information obtained by the Customer through the Service including in Reports will meet the Customer's requirements; and

   2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities;

   3. shall in no event be liable for unavailability, inaccuracies, incompleteness or errors in the Captured Data or results provided through the Service.

4.  Except as expressly provided herein, each party expressly excludes all warranties, representations, terms, conditions, or other commitments of any kind, whether express or implied, statutory or otherwise. Each party specifically disclaims all implied warranties, including (without limitation) any warranties, representations, terms, conditions, or other commitments of merchantability or fitness for a particular purpose or of satisfactory quality or of reasonable skill and care, in each case, to the maximum extent permitted by applicable law.

5. Each party disclaims all liability and indemnification obligations for any harm, damages, or other liability caused by any third-party hosting providers.

6. Except for normal wear and tear, the customer will be responsible for any damage to any hardware while in its possession, irrespective of how such damage occurs.

12. Limitation of liability

1. This Clause 12 sets out the entire financial liability of the supplier (including any liability for the acts or omissions of its employees, agents, and subcontractors) to the customer in respect of: (a) any breach of the contract; (b) any use made by the customer of the service and documentation or any part of them; and (c) any representation, statement, or tortious act or omission (including negligence) arising under or in connection with the contract.

2. Nothing in the contract excludes the liability of the supplier: (a) for death or personal injury caused by the supplier's negligence; or (b) for fraud or fraudulent misrepresentation.

SUBJECT TO CLAUSE 12.2:

1. The Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect, or consequential loss, costs, damages, charges or expenses however arising under the Contract;

2. the Supplier shall have no liability to the Customer in the event of any Defect or any delay to the Service caused by the Customer exceeding a rating of 13 amps in respect of any Hardware;

3. the Supplier shall have no liability to the Customer in the event of any delay to the Service caused by the Customer failing to grant the Supplier access to the Customer’s Wi-Fi in the manner reasonably proposed by the Supplier;

4. the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total fees paid hereunder for the Service giving rise to the liability in the twelve months preceding the first incident out of which the liability arose.

3. The customer shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the contract or any document expressly referred to in it.

4. In the event of any defect, the supplier’s liability (if any) shall be limited, at its sole discretion, to

1. Replacing the Hardware;

2. rectifying such defects at its own expense;

3. granting the Customer a full or partial refund for the appropriate part of the charges paid by the Customer,

4. completion of which shall mean the Supplier shall have no further liability to the Customer in respect of such Hardware.

13. Confidentiality and Data Processing

1.  Each party may be given access to confidential information from the other party in order to perform its obligations under the contract. A party's confidential information shall not be deemed to include information that:

   1. Is or becomes publicly known other than through any act or omission of the receiving party;

   2. was in the other party's lawful possession before the disclosure;

   3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

   4. is independently developed by the receiving party, which independent development can be shown by written evidence.

2.  Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any confidential information of the other party for any purpose outside the scope of the contract and (ii) except as otherwise authorized by the other party in writing, limit access to confidential information of the other party to those of its employees and contractors who need that access for purposes consistent with the contract and who have signed confidentiality agreements containing protections not materially less protective of the confidential information than those herein.

3. A party may disclose confidential information of the other party to the extent compelled by law to do so, provided the party called on to make the compelled disclosure gives the other party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.

4. To the extent that there is personal data in the captured data or otherwise collected and processed as part of the service, the parties agree to comply with the terms in the Data Processing Addendum.

5. The customer acknowledges and agrees with the supplier’s privacy policy, available on its website (as such may be varied from time to time by the supplier by written notice to the customer).

This Clause 13 shall survive termination of the contract, however arising.

14. Term and Termination

1. The contract commences on the date hereof and continues until the service has expired or has been terminated in accordance with the provisions of the contract.

2. The customer may terminate the contract for convenience at any time provided that in such event, the customer remains liable to pay the supplier for any outstanding sums in respect of the service. In such event, the supplier shall have the sole discretion to refund none, all, or any part of the charges paid by the customer on return of the hardware in reasonable condition to the supplier (at the customer’s sole cost and responsibility).

3. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the contract without liability to the other:

   1. Upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or

   2. immediately on written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding (whether voluntary or involuntary), relating to insolvency, administration, receivership, administrative receivership, liquidation, or assignment for the benefit of creditors or takes or suffers any similar or analogous procedure, action or event in consequence of debt in any jurisdiction.

4. On termination of the contract for any reason:

   1. All licences granted under the Contract and the right to use the Service shall immediately terminate;

   2. each party shall return and make no further use of any equipment (including Hardware), property, Documentation and other items (and all copies of them) belonging to the other party;

   3. the Supplier will refund Customer any prepaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination where the Customer has terminated pursuant to clause 14.3;

   4. the Customer may download the Reports for a period up to ten days after the effective date of the termination of the Contract, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Captured Data will be available for twelve (12) months following the date of termination and Customer may request Supplier to generate Reports during this period. Supplier reserves the right to charge a fee for generating additional Reports in this period following termination. Twelve months after termination the Captured Data will be anonymised, and further full Reports will not be able to be generated; and

   5. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced. In no event will termination relieve Customer of its obligation to pay any fees payable to Supplier for the period prior to the effective date of termination.

15. General

1. Assignment. The customer shall not assign, transfer, declare a trust in respect of, or otherwise dispose of any of its rights under the contract without the prior consent in writing of the supplier. The supplier shall be entitled to assign or subcontract any or all of its rights and obligations under the contract to such person or corporate entity that it chooses.

2. Force Majeure. The supplier shall have no liability to the customer under the contract if it is prevented from or delayed in performing its obligations under the contract, or from carrying on its business, by acts, events, omissions, or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs, or other industrial disputes (whether involving the workforce of the supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown of plant or machinery, fire, flood, storm, default of suppliers or subcontractors, internet service provider failure or delay or any denial of service attack, or any third-party application (each a “force majeure event”), provided that the customer is notified of such an event.

3.  Notices. Any notice required to be given under the contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the contract, or such other address as may have been notified by that party for such purposes or sent by email save that formal legal notices will also be sent by post. Order forms and billing notices shall be sent by email to the address given for such by the customer in the order form.

4. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the copy of the sent email obtained by the sender).

5.  Waiver. A waiver of any right under the contract is only effective if it is in writing and signed by the waiving party, and it applies only to the person to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under the contract are cumulative and do not exclude rights provided by law.

6.  Severance. If any provision of the contract (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

7. Publicity. The customer agrees that the supplier may publicise that the customer is a customer of the supplier, and the customer agrees to provide the supplier, on the supplier’s reasonable request, with testimonials, statements for press releases, and to participate in case studies.

8. Third Party Rights. This agreement, and the documents referred to in it, are made for the benefit of the parties to them and their successors and permitted assigns and are not intended to benefit, or be enforceable by, anyone else.

9. Entire Agreement. The parties agree that

   1. The Contract constitutes the complete and exclusive statement of the Agreement between them with respect to the subject matter of the Contract, which supersedes all proposals, oral or written, and all other communications between them relating to it, including the Proposal;

   2. in the event of any conflict between these terms and conditions and an Order Form, the Order Form shall prevail; and

   3. neither the Proposal, its contents nor its acceptance shall give rise to any legally binding or enforceable obligation or right.

10. The supplier may, in its absolute discretion, amend the terms of the contract:

    1. On any renewal of the Subscription Term, provided that the Supplier has given written notice of any such amendments to the Customer prior to such renewal;

    2. at any time by written notice to the Customer provided that, if the Customer does not accept any such variation, the Supplier shall be entitled to terminate the Contract and reimburse the Customer for any remaining part of the Subscription Term for which the Customer has paid the relevant fees and charges,

    3. and your continued use of the Service following the deemed receipt and service of the notice shall constitute the Customer’s acceptance to the terms of the Contract, as varied. If the Customer does not wish to accept the terms of the Contract (as varied) it must immediately stop using and accessing the Service on the deemed receipt and service of the notice.

11. The parties agree that the courts of England have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the contract (including as to formation, enforceability, validity or interpretation).

12. Governing Law. This agreement is governed by English law.